Mapping Pends

General

Pend is a Scottish word used to describe an archway, vaulted or covered passage. They are a relatively common architectural feature, often allowing access to the rear of a row of houses by way of a path or passageway that passes under one or more of the houses at ground floor level.

Cadastral units are defined in section 12(1) of the 2012 Act as being a unit which represents a single registered plot of land. Section 12(2) states that the same area of land cannot be represented by more than one cadastral unit - for the same plot of land to be registered in two cadastral units would mean that there was a competition in title to that plot of land.

When applications are submitted for registration that include parts of (non tenement) buildings on particular floor levels only, these will be mapped to form part of the cadastral unit for the title being registered. This, at first glance, may appear to contravene section 12(2), because the same area of the cadastral map may look like it is in two (or more) cadastral units. However by reference to the legend to the cadastral map (the Plan Creator classifications or the DMS casenotes) and the title sheet, it will be clear that there is no competition in title as each cadastral unit will include the plot at a particular floor level only. The same principle can be applied to the registration of strata of underlying ground (for example, railway tunnels), and for air space. Registration of roof space, however, will more commonly be dealt with under the tenement mapping practices.

Useful Links

Mapping common areas and shared plots

Mapping Styles & Plans References on the Cadastral Map

Using Groupings in the Plan Creator

Air space

Roof space

Whilst this page makes use of the term pend, there are variations (some of which are regional) in the way "pends" are referred to in deeds. Common examples are archways, covered passages or passageways, covered closes, vennels, etc. If you are satisfied that the feature is a pend-type feature, then the guidance on this page can be applied. Please use the description contained in the deed rather than changing the text to refer to a pend.

Changes following introduction of the Plan Creator

As all polygons are now classified in the Plan Creator, it is not possible to have polygons of different levels of ownership overlapping in the primary "ungrouped" layer of the cadastral map. In those pend scenarios where there are different ownership rights at ground level and above ground level (i.e. not those with only rights of access at ground level), then the Groupings functionality with the Plan Creator should be used when mapping such titles. The primary "ungrouped" layer of the cadastral map should be used as normal for the main ownership polygons, common areas, burdens, etc., whilst the first "grouped" layer of the cadastral map (an additional cadastral map layer or view) should be used for the extent of any ownership of the building above the pend.

Most pends form part of a non-tenement building and therefore are not registered using a tenement style - so any additional grouping or layer that is required should be described as an additional cadastral map view, not as supplementary data.

If you believe your pend does form part of a tenement building, please discuss the appropriate style with your referral point before proceeding with the registration.

The examples, below, of some different scenarios have been split to show how titles should be created in Plan Creator as well as how they would previously have been mapped in the DMS.

Common pend styles

From a registration point of view, properties with pends require particular consideration as the rights of ownership to the different levels of the pend and the building above it, and any rights of access through it, may have been conveyed in one of several different styles.

The most common of these styles are considered below:

Plan Creator Pend examples

No common rights

Scenario 1	Whole of pend is included in the property, no common ownership, burdened by servitude right of access.
Description in application	All and whole 88 Liddle Court, Bo'ness...coloured pink and blue on the plan annexed hereto. There is reserved from the property a right of passage at all times for pedestrian traffic only in favour of the public at large by way of the passageway and pend between ground and first floor level on that part of the property coloured blue on the said plan.
Deed plan
Plan Creator polygons & classifications	Primary "ungrouped" layer of cadastral map Ownership - Exclusive edged red to reflect the ownership of the whole cadastral unit. Burden tinted blue to reflect the burden of the right of pedestrian access through passageway & pend between ground & 1st floor level
Cadastral map extract
Title sheet property section	Subjects cadastral unit WLNxxx 88 LIDDLE COURT, BO'NESS edged red on the cadastral map
Other title sheet content to be added	The legal settler will add in the burden of the servitude over the part tinted blue, following the wording of the deed.

Scenario 2	Only the part of the building over the pend at first floor level is included in the property, no common ownership of the solum of the pend included.
Description in application	All and whole 88 Liddle Court, Bo'ness...coloured pink on the plan annexed hereto with the part of the building at first floor level only coloured blue on the said plan.
Deed plan
Plan Creator polygons, groupings & classifications	Primary "ungrouped" layer of cadastral map Ownership - Exclusive tinted pink to reflect the ownership of the main house plot. Ownership - strata tinted blue to reflect the ownership of the part of the building at first floor level only
Cadastral map extract
Title sheet property section	Subjects cadastral unit WLNxxx 88 LIDDLE COURT, BO'NESS tinted pink on the cadastral map with the part of the building at first floor level only tinted blue on the cadastral map.
Other title sheet content to be added	nil

Scenario 3	One half of the pend & the building above is included in the property, no common ownership of the solum of the pend included, benefited and burdened by servitude rights of access.
Description in application	All and whole 33 John Street, Grangemouth....coloured pink and brown on the plan annexed hereto, with a one half pro-indiviso share in the common path coloured yellow on the said plan; together with a servitude right of pedestrian access over that part of 35 John Street coloured blue on the said plan at ground floor level only. There is reserved from the property a servitude right of pedestrian access in favour of 35 John Street over that part of the subjects in this title coloured brown on the said plan at ground floor level only.
Deed plan
Plan Creator polygons, groupings & classifications	Primary "ungrouped" layer of cadastral map Ownership - Exclusive tinted pink to reflect the ownership of the main house plot - please remember this polygon should be created to the full extent of the ownership i.e. under the brown burdens polygon. Ownership - shared tinted yellow to reflect the pro-indiviso share in the common path Servitude tinted blue to reflect the right of access in favour of our subjects over that part of 35 John Street at ground floor level only Burden tinted brown to reflect the right of access in favour of 35 John Street over that part of our subjects at ground floor level only - please remember this polygon should sit on top of the ownership polygon
Cadastral map extract
Title sheet property section	Subjects cadastral unit STGxxx 33 JOHN STREET, GRANGEMOUTH tinted pink and brown on the cadastral map.
Other title sheet content to be added	The legal settler will add in the pro-indiviso share in the common path tinted yellow on the cadastral map, as well as the benefit & burden of the servitudes over the parts tinted blue and brown, following the wording of the deed.

Common areas - existing sharing & shared plot title sheets

Please note, in most pend scenarios, the common areas are now likely to be considered to be a pertinent of the primary plot (see Mapping of Common Areas and Shared Plots for more guidance). However, where under previous guidance one or more shares in a common area such as a common path or driveway have been included in a shared plot title sheet, then all subsequent shares in that area should be registered in a similar manner.

Scenario	One half of the building above the pend included in the property, common ownership of the solum of the pend included, benefited and burdened by servitude rights of access - common ownership being mapped as a shared plot).
Description in application	All and whole 33 John Street, Grangemouth....coloured pink on the plan annexed hereto with that part of the building located at first floor level coloured blue on the said plan, with a one half pro-indiviso share in the common passageway or pend between ground and first floor level coloured brown and blue on the said plan, and a one half pro-indiviso share in the common path coloured yellow on the said plan; together with a servitude right of pedestrian access over that part of 35 John Street coloured blue on the said plan at ground floor level only. There is reserved from the property a servitude right of pedestrian access in favour of 35 John Street over that part of the subjects in this title coloured brown on the said plan at ground floor level only.
Deed plan
Plan Creator polygons, groupings & classifications - sharing plot	Primary "ungrouped" layer of cadastral map Ownership - Exclusive tinted pink to reflect the ownership of the main house plot. Ownership - strata tinted brown to reflect the ownership of the part of the building at first floor level only Servitude tinted blue to reflect the right of access in favour of our subjects over that part of the common passage or pend at ground floor level only Burden tinted brown to reflect the right of access in favour of 35 John Street over that part of the common passage or pend at ground floor level only
Cadastral map extract - sharing plot
Title sheet property section - sharing plot	Subjects cadastral unit STGxxx 33 JOHN STREET, GRANGEMOUTH tinted pink on the cadastral map with the part of the building at first floor level only tinted brown on the cadastral map.
Other title sheet content to be added - sharing plot	The legal settler will add in the cross reference in the property section to the shared plot title sheet, as well as the benefit & burden of the servitudes over the parts tinted blue and brown, following the wording of the deed.
Plan Creator polygons, groupings & classifications - shared plot	Primary "ungrouped" layer of cadastral map Ownership - exclusive edged red to reflect the full extent of the shared plot cadastral unit. (Remember, when a commonly owned area is being registered as a separate cadastral unit in a shared plot title, then the whole ownership of the cadastral unit is within that title but with multiple owners listed in the proprietorship section). Exception tinted mauve to reflect the part of the building at first floor level that is being verbally excepted in the property description
Cadastral map extract - shared plot
Title sheet property section - shared plot	Subjects cadastral unit STGyyy being the common path and passageway or pend at 33 and 35 JOHN STREET, GRANGEMOUTH edged red on the cadastral map.
Other title sheet content to be added	The plans settler will add a restrictive note to the property section, following the wording of the deed - "As to the part tinted mauve on the cadastral map, that part of the building at first floor level is excluded from this cadastral unit." The legal settler will add in the details of the share being registered and the cross reference in the proprietorship section to the sharing plot title sheet.

Common areas - (i) transitional arrangements and (ii) pertinents

Where either (i) previous 1979 Act registrations of shares in some or all of the common areas exist or (ii) the common areas can be treated as pertinents of the primary plot undergoing registration, then it is not appropriate to set up shared plot title sheets for the common areas (see Mapping of Common Areas and Shared Plots for more guidance). Instead, they should be mapped using either (i) the Transitional Provisions in schedule 4, paragraph 9 of the 2012 Act or (ii) the provision in section 3(7) of the Act relating to pertinents as appropriate, and the shares in the respective common areas will be mapped in the cadastral unit and included in the title sheet for the primary plot.

Scenario	One half of the building above pend included in the property, common ownership of the solum of the pend included, common ownership of the path.
Description in application	All and whole 18 Hearth Place, Ormiston .... coloured pink on the plan annexed hereto with the part of the building at first floor level only coloured blue on the said plan, with a one half pro-indiviso share in the common path and close all coloured yellow and blue on the said plan
Deed plan
Plan Creator polygons, groupings & classifications	Primary "ungrouped" layer of cadastral map: Ownership - exclusive, tinted pink for the ownership of the main plot Ownership - shared, tinted yellow for the right in common to the path and close Additional "grouped" layer of the cadastral map: Ownership - strata, tinted blue for the ownership of the part of the first floor tinted blue
Cadastral map extracts	- Primary layer - Additional layer
Title sheet property section	Subjects cadastral unit ELNxxx 18 HEARTH PLACE, ORMISTON tinted pink on the cadastral map with the part of the building at first floor level only tinted blue on additional cadastral map view 1.
Other title sheet content to be added	The legal settler will add in the pro-indiviso shares in the common path and close shown on the cadastral map, following the wording of the deed.

DMS Pend scenarios

Although cases are no longer being mapped on the DMS, and all current applications should be mapped following the Plan Creator styles, above, there will be instances when a current application adjoins or is affected by a pend case that was mapped on the DMS. To aid understanding if dealing with one of these titles, this guidance has been for reference purposes.

No common rights

Scenario	Description in application	DMS casenotes	Title sheet property section	Other title sheet content to be added
1 Whole of pend is included in the property, no common ownership, burdened by servitude right of access.	All and whole 88 Liddle Court, Bo'ness...coloured pink and blue on the plan annexed hereto. There is reserved from the property a right of passage at all times for pedestrian traffic only in favour of the public at large by way of the passageway and pend between ground and first floor level on that part of the property coloured blue on the said plan.	88 Liddle Court, Bo'ness edged red. Burdened by servitude right of pedestrian access through passageway & pend between ground & 1st floor level - tinted blue	Subjects cadastral unit WLNxxx 88 LIDDLE COURT, BO'NESS edged red on the cadastral map	The legal settler will add in the burden of the servitude over the part tinted blue, following the wording of the deed.
2 Only the part of the building over the pend at first floor level is included in the property, no common ownership of the solum of the pend included - mapped using red edge method.	All and whole 88 Liddle Court, Bo'ness...coloured pink on the plan annexed hereto with the part of the building at first floor level only coloured blue on the said plan.	88 Liddle Court, Bo'ness edged red. As to the part tinted blue, only the part of the building at first floor level is included in this title.	Subjects cadastral unit WLNxxx 88 LIDDLE COURT, BO'NESS edged red on the cadastral map	The plans settler will add a restrictive note to the property section, following the wording of the deed - "As to the part tinted blue on the cadastral map, only that part of the building at first floor level is included in this cadastral unit."
3 Only the part of the building over the pend at first floor level is included in the property, no common ownership of the solum of the pend included - mapped using tinting method.	All and whole 88 Liddle Court, Bo'ness...coloured pink on the plan annexed hereto with the part of the building at first floor level only coloured blue on the said plan.	88 Liddle Court, Bo'ness tinted pink with the part of the building at first floor level only tinted blue.	Subjects cadastral unit WLNxxx 88 LIDDLE COURT, BO'NESS tinted pink on the cadastral map with the part of the building at first floor level only tinted blue on the cadastral map.
4 One half of the pend & the building above included in the property, no common ownership of the solum of the pend included, benefited and burdened by servitude rights of access - mapped using tinting method.	All and whole 14 John Street, Grangemouth....coloured pink and blue on the plan annexed hereto, with a one quarter pro-indiviso share in the common path coloured brown on the said plan; together with a servitude right of pedestrian access over that part of 12 John Street coloured purple on the said plan at ground floor level only. There is reserved from the property a servitude right of pedestrian access in favour of 12 John Street over that part of the subjects in this title coloured blue on the said plan at ground floor level only.	14 John Street, Grangemouth tinted pink and blue. With a 1/4 pro indiviso share in the common path tinted brown Benefited by a servitude right of pedestrian access over the area tinted mauve at ground floor level only. Burdened by a servitude right of pedestrian access over the area tinted blue at ground floor level only.	Subjects cadastral unit STGxxx 14 JOHN STREET, GRANGEMOUTH tinted pink and blue on the cadastral map.	The legal settler will add in the pro-indiviso share in the common path as well as the benefit & burden of the servitudes over the parts tinted blue and mauve, following the wording of the deed.

Common areas - existing sharing & shared plot title sheets

Where under previous guidance one or more shares in an area which would otherwise be considered to be a pertinent of a primary plot, such as a common path or driveway, have been included in a shared plot title sheet, then all subsequent shares in that area should be registered in a similar manner.

Scenario

Description in application

Deed plan

DMS casenotes

Cadastral map extract

Title sheet property section

Common issues relating to pends

As mentioned above, properties with pends require particular consideration. There will be examples of conveyancing where the descriptions are not 100% clear, where it seems that a right of ownership has been omitted, or it may even appear that the description contradicts itself within the deed.

Part of building above house not expressly conveyed

Commonly, specific problems are caused where title to a house has previously been conveyed, but the split-off deed has failed to expressly convey that part of that house which lies above a pend (such as a bedroom), notwithstanding that the house has been conveyed with a right in common to the pend (or a right in common to the solum of the pend). The Keeper's settled approach in such a scenario is that, in order to avoid future problems, where an exclusive part of a house lies above a pend, that part must be expressly conveyed in the split-off deed for that house, utilising a deed plan description where a satisfactory bounding description is not possible. In such a scenario, corrective or additional conveyancing is normally required to remedy the situation.

So in a reasonably common scenario where a local authority split-off deed for a house has failed to expressly convey that part of that house which lies above a pend, even though we can see from a deed plan or street level photography that the intention is for the room to be part of the house, the Keeper's position is that the room or part of the building above the pend would continue to belong to the local authority. Accordingly, corrective or additional conveyancing involving that local authority would be required to resolve the issue.

Right in common to pend v exclusive ownership of building above pend

The Keeper considers that the general rule that an owner of the surface owns a coelo usque ad centrum - from the heavens to the centre of the earth - has no direct applicability to pends. Rather, the Keeper considers that, where a right in common to a pend (or solum of a pend) has been conveyed, the reference to "pend" acts as a verbal restriction to what is being conveyed. The effect is that when a share of ownership of a pend is granted, this should be understood to exclude the strata of property outwith the airspace of the pend i.e. it does not include the building or part of the building above it. Therefore, if a deed includes an exclusive right of ownership of part of a building above a pend and also a right in common to the pend, this is not a self-competing deed as the use of "pend" in the right in common restricts it to exclude the building above.

A similar scenario exists when the neighbouring title is already registered to include a right in common to the pend, and the current application includes exclusive ownership of the part of the building above the pend - this is not a competition in title as both rights are restricted to their own strata. And the opposite applies, too. When the adjoining house is registered with exclusive ownership of part of building above the pend, and the current application includes a right in common to the pend, it is not a competition as these rights only extend to a particular strata or level.

However, if you are concerned that your application may create a competition in title, even if just at one floor level, please contact your referral officer in the first instance.

Deed that appears to dispone whole building including pend as well as right in common to pend

A third type of imperfect historic conveyancing that is occasionally seen is where the deed appears to grant full ownership to subjects shown on the deed plan, with that area/plans reference appearing to include the pend or part of the pend, but further narrating that the subjects have a right in common to the pend. On first viewing, this would appear to be a contradiction, or self-competing deed. However, in situations such as this, the Keeper has settled on a pragmatic approach, and we do not automatically need to reject applications like this.

Since the Keeper considers that the general rule that the owner of an area owns from the heavens to the centre of the earth does not apply in pends, as explained above, the Keeper considers that where a right in common or exclusive right to a pend is conveyed in a deed, this reference to "pend" acts as a restriction on what is included. In other words, only the space occupied by the pend is included in the pend reference, and following on from that it means that any other reference to owning part of the building extending over the pend must therefore be restricted to omit the space occupied by the pend. The property section description of the subjects will take into account that the pend is not included within the main property extent - if you are unsure how to word the description for your particular application (the style will depend on the particular scenario), or if you are concerned that there may be other issues or complications with your application, refer to a referral officer before proceeding.

Examples

Example 1
Description in application	All and Whole the dwellinghouse known as 45 Dinmont Drive coloured pink on the plan. Together with a right in common with No. 47 Dinmont Drive to the access vennel partly coloured brown, and partly coloured pink and hatched brown

Example 2
Description in application	All and Whole the dwellinghouse 23 Deantown Drive delineated and coloured pink and red and partly hatched blue on the plan. Together with a right in common with 25 Deantown Drive to the mutual vennel partly hatched red and blue and partly hatched blue.

In both these examples, it is evident that because this is a pend scenario, then the exclusive subjects can only be that part of the building above the pend, with the properties having a right in common to the pend. Proceed with mapping as per the Plan Creator mapping guidance.

If the historic deed is not absolutely clear, however, then liaise with your referral officer.